Category Archives: Family-based Immigration

Under internal guidance and in cooperation with visa policy of the U.S. State Department, USCIS is to uniformly and consistently process Form I-539 for changes to and extensions of B-2 status for cohabitating non-immigrant partners and other household members of principal non-immigrants.

In some circumstances, elderly parents, cohabitating non-immigrant partners, and other household members of principal non-immigrants may be ineligible for derivative status. For purposes of this memorandum, a “household member” of a principal non-immigrant is an alien who regularly resides in the same dwelling as the principal non-immigrant and with whom the principal non-immigrant maintains the type of relationship and care as one normally would expect between nuclear family members.

There are also circumstances when it may be inconvenient or impossible for spouses or children of principal non-immigrant aliens to apply for the proper derivative status. These aliens may seek B-2 visas, or change their status to B-2, to allow them to reside with the principal non-immigrant visa holder who is in the United States in another status (H-1B, F-1, etc.). Department of State guidance provides for issuance of B-2 visas to these household members.

Consular officers are to annotate the B-2 visa with the principal nonimmigrant’s visa type and duration, and to advise the B-2 visa holder to seek admission for one year at the point of entry if the B-2 visa holder plans to stay in the United States more than 6 months. Applicants may also seek extensions in six month increments from USCIS for the duration of the principal alien’s non-immigrant status.

When evaluating an application for change to or extension of B-2 status based on cohabitation, the cohabitating partner’s relationship to the non-immigrant principal alien in another status will be considered a favorable factor in allowing the household member to obtain or remain eligible for B-2 classification.

When considering a change of status and/or multiple extensions for the cohabitating partner or other household member, the finite nature of the stay, rather than the duration of the stay or number of extensions sought, is controlling with respect to nonimmigrant intent. For example, the visit should be considered temporary even if the status may be extended several times over several years in order to match an extended course of study undertaken by the principal alien. However, while the I-539 (B-2) application must be adjudicated on its own merits, a finding that the principal non-immigrant lacks non-immigrant intent is a negative factor in the exercise of USCIS’ discretion.

Recently, the U.S. Supreme Court has found section 3 of the Defense of Marriage Act (DOMA) unconstitutional. Effective immediately, U.S. government agencies will adjudicate applications for federal benefits that are based on a same-sex marriage in the same way that we adjudicate applications for opposite gender spouses. This means that the same sex spouse will be eligible for the same or derivative benefits. Likewise, stepchildren acquired through same sex marriages can also qualify as beneficiaries or for derivative status.

If your marriage is valid in the jurisdiction (U.S. state or foreign country) where it took place, it is valid for purposes of obtaining federal government benefits. At this time, only a relationship legally considered to be a marriage in the jurisdiction where it took place establishes eligibility as a spouse for immigration purposes.

For most federal benefits involving children or step-children, the marriage must have taken place before the child in question turns or turned 18.

If cases were previously submitted and denied by the government, solely based on reasons relating to “DOMA”, the government will now usually reopen those petitions or applications. The government will usually take steps to reconsider its prior adverse decision, as well as reopen associated applications to the extent they were also denied as a result of the primary denial (Example: when Form I-130 was denied, and subsequently Form I-485 is denied, all related cases will be reopened).

Just days ago, the Russian Supreme Court issued a letter providing guidance to regional courts. The letter clarifies that families that have had their preliminary court date prior to January 1, 2013 will be able to assume physical custody and obtain the necessary documents from Russian authorities to exit the country. This will be the case even if the 30 day waiting period expired after January 1, 2013. To date, 25 families have obtained visas to leave the country and some have travelled home with their children.

At the same time, other families in-country have experienced delays and have been unable to obtain necessary paperwork from Russian authorities. It is hoped that the Russian Supreme Court letter will help families move forward. Families who fall into this category should contact the U.S. Embassy in Russia, if they have not already done so. They should also keep in close contact with their adoption service providers who are still permitted to process these transition cases and who have more real-time information.

Starting February 1, 2013, USCIS will begin collecting a new fee of $165 from foreign nationals arriving in the United States as new immigrants.

The agency said it has worked closely with the Department of State (DOS) to implement the new fee, which will allow USCIS to recover the costs of processing immigrant visas in the United States after immigrant visa-holders receive their visa packages from DOS. This includes staff handling and the cost of producing and delivering the permanent resident card. Applicants will pay online through the USCIS website after they receive their visa packages from DOS and before they leave for the United States. DOS will provide applicants with information on how to submit the payment when they attend their consular interviews. The new fee is in addition to fees charged by DOS associated with an individual’s immigrant visa application.

USCIS processes approximately 36,000 immigrant visa packages each month. Adoption cases are generally exempt from the new fee.

1. In a change from the prior announcement, people currently in removal proceedings will use the USCIS process when it is implemented on August 15, 2012, rather than go through ICE. Only individuals in detention will go through ICE to make a deferred action request.

2. Information provided as part of the deferred action request process is protected from disclosure

to ICE or CBP for purposes of removal proceedings unless the requestor meets the criteria of USCIS’ November 2011 NTA memo.

3. If a departure from the U.S. was due to removal, voluntary departure, etc., the absence was not brief, casual and innocent and would interupt the continuous residence that is required since June 15, 2007. Short absences before August 15, 2012, reasonably calculated to accomplish the purpose of the trip, would not be interuptive.

4. Only people who are currently not in status and were not in any lawful status on June 15, 2012 are eligible.

5. A “significant misdemeanor” is one for which the individual was sentenced to more than 90 days, or a conviction for domestic violence, sexual abuse, burglary, firearm violation, drug distribution or trafficking (but not possession), or DUI, regardless of the sentence.

6. Minor traffic offenses, such as driving without a license, are not considered misdemeanors that count toward the “3 or more” standard.

7. The Form I-765 will be required, along with another form that will be made available on August 14 or 15. Total fees, including biometics, will be $465. Fee waivers will not be available, but fee exemptions will be permitted in very limited circumstances, and must be requested and approved before submitting a deferred action application without a fee.

8. Whether a person has reached age 15, and whether the requestor meets the education requirements, will be determined as of the date the request for deferred action is filed, NOT the June 15, 2012 date.

THE DREAM ACT: A CENTRAL ELEMENT OF REFORM
The Development, Relief and Education of Alien Minors (DREAM) Act (S. 729/H.R. 1751) is a bipartisan bill that would provide a conditional six-year pathway to legal permanent residence for certain unauthorized youth who, as children, were brought to the U.S. if they: complete high school; demonstrate good moral character; and complete at least two years of higher education or serve for at least two years in the U.S. military. The bill also would also repeal section 505 of the Illegal Immigrant Reform and Immigrant Reconciliation Act of 1996 (IIRIRA) that prohibits states from providing any higher education benefit based on residency to unauthorized immigrants unless they provide the same benefit to U.S. citizens in the same circumstances, regardless of their residence.

THE DREAM ACT CAN STRENGTHEN THE U.S. ECONOMY

The students who would benefit under the DREAM Act have been raised and educated in the U.S. and by allowing them to pursue a higher education, we are investing in the future of our country and our economy.
• Communities, states, and nation would reap significant benefits from the DREAM Act. A RAND study showed that a 30-year-old Mexican immigrant woman who graduated from college will pay $5,300 more in taxes and cost $3,900 less in government expenses each year than if she had dropped out of high school. This amounts to an annual fiscal benefit of over $9,000 every year, money that can be used to pay for the education of others.
• DREAM Act beneficiaries will make up part of the educated workforce needed to help the U.S. compete in the global economy. In our globalized world, their multilingual and bicultural skills, and contributions are more important than ever to the success and global competitiveness of the United States.

CURRENT LAW PROVIDES NO WAY FOR THESE CHILDREN TO ACHIEVE LEGAL STATUS

• Due to the undocumented status of their parents and other family members, they have no available avenues for family-based visa sponsorship.
• Few employers would or could sponsor them for a work visa due to their age and lack of work experience. Even if an employer was willing to sponsor them, the process takes precious years that these children cannot afford to waste.

STATES SHOULD HAVE THE RIGHT TO DETERMINE WHO QUALIFIES FOR IN-STATE TUITION

• States are required to invest in elementary and secondary education for undocumented children, but can’t collect on the return. However, when states are ready to earn a return on their investment through a highly educated workforce, they are barred from offering in-state tuition to these children. The states (and their taxpayers) have the right to earn this return.
• States should have the authority to determine how they allocate their resources. Such an educational investment pays dividends for the states by reducing the dropout rate, leading to substantial savings in criminal justice costs and the use of public benefits, and sharply increasing the taxes paid by those benefiting from this initiative. AILA InfoNet Doc. No. 09043072. (Posted 3/19/10).

THIS BILL REFLECTS A BALANCED APPROACH TO REFORM AND MUST BE PART OF ANY COMPREHENSIVE EFFORT TO OVERHAUL OUR IMMIGRATION LAWS

• This measure would require children to have lived in the U.S. for a number of years and to have no criminal record.
• This measure would require eligible children to dedicate themselves to learning English and succeeding in our educational system.
• This measure proposes a one-time only fix that would not encourage illegal immigration.

This measure recognizes that the status quo needs to be reformed by granting children the means to continue their education and legalize their status. Such reform works for children and works for America.

“Deferred action” amounts to an excercise of favorable discretion by the authorities, which allows an individual to remain temporarily in the United States and apply for work authorization. It does not confer any kind of permanent residence, nor can it be seen as a form of amnesty.

Under this new initiative, deferred action would be granted for two year increments and would be renewable.

According to DHS, people may apply for deferred action if they meet all the following criteria:

came to the U.S. under the age of 16;

are not above the age of 30;

have resided in the U.S. for 5 consecutive years as of the date of the memo;

are currently in school, have graduated from high school, obtained a GED or have been honorably discharged from the armed forces; and

have not been convicted of a felony offense, a significant misdemeanors, multiple misdemeanors or who do not pose a threat to national security or public safety.

Specifically, DHS advised that:

Effective immediately, ICE, CBP, and USCIS agents should not place individuals into removal proceedings who meet the above criteria.

For those already IN immigration proceedings and who have been offered administrative closure under the previous prosecutorial discretion program, ICE will begin making determinations about deferred action immediately. For other persons who are in removal proceedings, ICE is directed to implement the program within 60 days.

For those NOT in removal proceedings, which is the vast majority of individuals affected by the new announcement, USCIS has been directed to devise a plan within 60 days that allows people 15 and older to affirmatively apply for both deferred action and work authorization (those granted deferred action through ICE will apply to USCIS for work authorization as well). People with final orders of removal will also apply to USCIS.

In keeping with “tradition”, the U.S. State Department, which oversees the annual Greencard Lottery program, has posted participation dates and instructions for the upcoming DV-2013 lottery, which will accept entries between October 4 and November 5.

For fiscal year 2013, 50,000 diversity visas will be available. The annual DV program makes visas available to persons meeting simple, but strict, eligibility requirements. A computer-generated, random drawing chooses selectees for DVs. The visas are distributed among six geographic regions, and within each region, no single country may receive more than seven percent of the available DVs in any one year. Visas are allocated to nationals of countries with historically lower rates of U.S. immigration. Nationals of countries who have sent more than 50,000 immigrants to the United States over the past five years are not eligible to apply for the Diversity Visa program.

For DV-2013, natives of the following countries1 are not eligible to apply because the countries sent a total of more than
50,000 immigrants to the United States in the previous five years:

Changes in eligibility this year: For DV-2013, natives of South Sudan and Poland are now eligible for selection, while Bangladesh natives are now ineligible.

Entries for the DV-2013 DV program must be submitted electronically between noon, Eastern Daylight Time (EDT) (GMT-4), Tuesday, October 4, 2011, and noon, Eastern Daylight Time (EDT) (GMT-4), Saturday, November 5, 2011. Applicants may access the electronic DV Entry Form (E-DV) at www.dvlottery.state.gov during the registration period. Paper entries will not be accepted.

Generally, a Greencard holder (aka “Lawful Permanent Resident”) is required to maintain his/her worldwide domicile and residence in the United States, and should be physically present during 6 months of any 12-month period. Absences from the United States for over 12 months, can lead to a loss of the permanent resident status and lead to revocation of the Green Card, if certain precautions are not taken.

A Greencard holder who knows that he/she will be absent abroad (i.e. outside the U.S.) for a year or more, for sufficient cause (such as extended travel, temporary employment, course of study / training, etc.), may and should apply for a Reentry Permit. The application for issuance of a Reentry Permit, Form I-131, must be submitted prior to his/her departure from the United States. A Reentry Permit is generally valid for 24 months at a time.

Persons who have remained outside the United States for one year or more without a valid Reentry Permit, or beyond the validity of a Reentry Permit, may be eligible to apply for a “returning resident visa” (“SB-1″) with the Department of State Immigrant Visa Section at a U.S. Consulate.

A provision exists under U.S. visa law for the issuance of a returning resident special immigrant visa to an LPR who remained outside the U.S. (often due to circumstances beyond his/her control). You will need to be interviewed for both your application for returning resident status, and usually later for the immigrant visa. An SB-1 applicant is required to establish eligibility for an immigrant visa and have a medical examination. Therefore, this involves paying both visa processing fees and medical fees.

Under provisions of immigration law, to qualify for returning resident status, you will need to prove to the Consular Officer that you:

Had the status of a lawful permanent resident at the time of departure from the U.S.;

Departed from the U.S. with the intention of returning and have not abandoned this intention; and

Are returning to the U.S. from a temporary visit abroad and, if the stay abroad was protracted, this was caused by reasons beyond your control and for which you were not responsible.

If, after reviewing your Application to Determine Returning Resident Status, Form DS-117, and supporting documents, the Consular Officer determines that you do not meet the criteria for a Returning Resident (SB-1) immigrant visa on the grounds that you have abandoned or relinquished your residence in the U.S., you may have to apply for an immigrant visa on the same basis and under the same category by which you immigrated originally.

Senate Majority Leader Harry Reid announced that he would attach the so-called “DREAM Act” to a Defense authorization bill expected to come before the Senate as early as next week.

While both Democrats and Republicans acknowledge a desperate need of reform, it will be interesting to see if Congress can get its Act (pun intended) together and transcend its bipartisan bickering and make something happen.

First introduced in 2001, the DREAM Act would address the plight of young immigrants who have been raised in the U.S. and managed to succeed despite the challenges of being brought to the U.S. without proper documentation. The proposal would offer a path to legal status to those who have graduated from high-school, have stayed out of trouble and plan to attend college or serve in the U.S. military for at least two years.

According to the Immigration Policy Center, research has shown that providing a legal status for young people who have a proven record of success in the United States would be a boon to the economy and the U.S. workforce. University presidents and educational associations, as well as military recruiters, business and religious leaders have added their voice to those calling for passage of the bill. Foreign-born students represent a significant and growing percentage of the current student population. Unfortunately, immigration status and the associated barriers to higher education contribute to a higher-than-average high dropout rate, which costs taxpayers and the economy billions of dollars each year.

The DREAM Act would eliminate these barriers for many students, and the DREAM Act’s high school graduation requirement would provide a powerful incentive for students who might otherwise drop out to stay in school and graduate. This will help boost the number of high skilled American-raised workers. As they take their place in the workplace as hard working, taxpaying Americans, they will contribute a lifetime of revenues at the local, state and federal level.

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